April 29, 2009

Scalia Yells at Cloud

by publius

I'll have more to say on the Supreme Court's indecency decision later -- though it was decided on narrow administrative law grounds, rather than on constitutional grounds.

Briefly, though, the opinion illustrates once again (like Lawrence and Raisch) that Justice Scalia's worldview is shaped by a bitter and venomous resentment of what he perceives as cultural liberalism. I mean, a sitting Justice actually used the phrase, "foul-mouthed glitteratae from Hollywood." Weird.

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Far more interesting is that Justice Thomas, while ruling with the majority on the administrative law grounds, suggested that the FCC might not have the right to ban words or content at all:

[citations removed]

I join the Court’s opinion, which, as a matter of adminis-trative law, correctly upholds the Federal Communica-tions Commission’s (FCC) policy with respect to indecentbroadcast speech under the Administrative Procedure Act. I write separately, however, to note the questionable viability of the two precedents that support the FCC’sassertion of constitutional authority to regulate the pro-gramming at issue in this case. Red Lion and Pacifica were unconvincing when they were issued, and the pas-sage of time has only increased doubt regarding theircontinued validity. “The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so” in these cases. In Red Lion, this Court upheld the so-called “fairnessdoctrine,” a Government requirement “that discussion ofpublic issues be presented on broadcast stations, and that each side of those issues must be given fair coverage.” The decision relied heavily on thescarcity of available broadcast frequencies. According tothe Court, because broadcast spectrum was so scarce, it“could be regulated and rationalized only by the Govern-ment. Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.” Id., at 376. To this end, the Court concluded that the Gov-ernment should be “permitted to put restraints on licen-sees in favor of others whose views should be expressed on this unique medium.” (concluding that “as far as the First Amendment is con-cerned those who are licensed stand no better than those to whom licenses are refused”). Applying this principle, the Court held that “[i]t does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire commu-nity, obligated to give suitable time and attention to mat-ters of great public concern.”

...

This deep intrusion into the First Amendment rights ofbroadcasters, which the Court has justified based only on the nature of the medium, is problematic on two levels. First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transi-tory facts, e.g., the “scarcity of radio frequencies,” Red Lion, supra, at 390, to determine the applicable First Amendment standard. But the original meaning of theConstitution cannot turn on modern necessity: “Constitu-tional rights are enshrined with the scope they were un-derstood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” In breaching this principle, Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks any textual basis in the Constitution. (“First Amend-ment distinctions between media [have been] dubious from their infancy”). Indeed, the logical weakness of Red Lion and Pacifica has been apparent for some time: “It is cer-tainly true that broadcast frequencies are scarce but it is unclear why that fact justifies content regulation of broad-casting in a way that would be intolerable if applied to the editorial process of the print media.”

It sounds to me like Thomas is suggesting that TV be treated just like print media in terms of the first amendment when the case comes down to the merits.

Most remarkable to me is the sheer effort that has gone into pursuing the occasional utterance of a dirty word over the public airwaves. I can see some merit to arguments on both sides, but surely we don't need a government agency to police this sort of thing. The same Republicans who howl when government undertakes to increase regulation the financial sector, where real obscenities blossom like dandelions, are eager to have government tell broadcasters what words they cannot use.

If we can send a man to the moon, surely we can find better ways to launder the language of broadcast radio and TV.

And while we're at it, "glitteratae" is a macaronic (mixing of languages) error. The word is a facetious variant of the Italian "litterati," not any Latin word, and should be pluralized in the same way. Scalia can be too clever for his own good.

"... but surely we don't need a government agency to police this sort of thing"

Well, the court says the FCC has the power to punish fleeting expletives. But does it have the obligation to? An FCC composed of sane people would be the best and easiest way to make Scalia's cloud-yelling moot, no?

Scalia is a rationalizer, always has been, which is why it gives me a pain when he's portrayed as some kind of staunch originalist. He'll use originalist rhetoric when it suits him, but only when the result it points to DOES suit him.

It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom.

Thomas thinks that because the founders would not have tolerated a federal regulation limiting the number of newspapers that could be published in a town, there ought to be no federal limit on the number of, say, radio stations that can broadcast on 96.9.

Actually he seems to think that just because you limit the number of radio stations on 96.9, that you don't get to control what they actually broadcast. He seems to be objecting to the idea that the licensee loses his 1st amendment rights. He seems to be objecting to the conclusion "as far as the First Amendment is con-cerned those who are licensed stand no better than those to whom licenses are refused"

What Seb just said. I might add that if we have to regulate the speech of broadcasters since spectrum is scarce, perhaps we should also regulate the content of newspapers. After all, large printing presses are about as scarce as spectrum slots....

Actually he seems to think that just because you limit the number of radio stations on 96.9, that you don't get to control what they actually broadcast. He seems to be objecting to the idea that the licensee loses his 1st amendment rights.

Well, you know, that might be a semi-sensible interpretation if Justice Thomas didn't really believe in the "original intent/textualism nonsense" he spouts in the quoted excerpt. Because he does, or at least, he pretends he does, he can't be saying that it's okay to forbid them to broadcast at all, as long as you don't regulate content.

"commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom."

*giggles*

(Sometimes I get home late, sometimes I get home early. And when I get home early, sometimes I eat a late lunch/early dinner while watching CNN. Boy, are the ads on at 4pm skewed towards the elderly and disabled demographics. AARP, bladder control, 'we will get you your own scooter chair!', 'having trouble breathing?', etc., etc.)

The case is a very interesting way to look into the head of the various justices, with multiple opinions provided.

Many themes, including the role and decision making of agencies, are raised. It would be wrong to single out the dirty words aspect since the case might come back as a full 1A matter & be decided differently on that ground.

Scalia also cited the "unitary executive" and how independent agencies like the FCC are a sign of "increased subservience" to Congress and public pressure. Nice Scalia/Stevens back and forth.

As to Thomas, his libertarian consistency is appreciated (and does pop up now and again), though some question begging original understanding thinking does pop up. Such as how 1A doctrine cannot be based on something that might change -- like the realities of television.

Your heart can be in the right place, but still get there the wrong way.